Left and Right and the Middle East: Notes on the Social Construction of Race

Abstract

This Article critically examines perhaps the only uncontested fact in the Israeli-Palestinian conflict: generally speaking, the Left supports the Palestinians and the Right backs the Israelis. It argues that closer examination of the Israeli and Palestinian positions on key issues reveals that the positions should be substantially altered: the Left should identify more closely with the Jewish state, and the Right should see in the Palestinian position important aspects of its own ideology. Powerful arguments exist for a substantial complexification in current political alignments. The current, nearly-lockstep positions make little sense.

The persistence of these anomalies derives, the Article contends, from the powerful influence of race on the debate. Racial politics has moved both Left and Right into taking positions that sit uneasily with their ideological commitments. This racial thinking, however, relies not on facts but rather on an elaborate social construct - a construct that, I argue, may stem from long-outdated Cold War and inter-Arab rivalries. Partisans of both sides may see themselves as engaged in a contemporary struggle, but just as much they are echoing the battles of the past.

How did all of this happen? And why should lawyers care? The Article suggests that legal theory provides a particularly incisive prism through which to view the ideological conflict and its racially-inflected origins. It considers three prominent areas of legal theory and attempts to show how they reveal both the ideological contradictions of the Israeli-Palestinian conflict and the roots of those contradictions. The affirmative action debate helps illuminate the controversy over Israel's Jewish character and the "Law of Return", which grants Israeli citizenship to Jews but not to other groups. The debate over the Takings Clause sheds light on the Palestinian claim of a "right of return". And the contributions of critical race theory, particularly its insight into how the very notion of race is socially constructed, helps us to understand more fully the political alignments (and misalignments) that comprise the Middle East debate. Legal theory, of course, cannot solve the conflict. It can, however, help us understand its roots in a more profound way.